Progressive Democrats For Social Justice v. Rob Bonta

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 PROGRESSIVE DEMOCRATS FOR Case No. 21-cv-03875-HSG SOCIAL JUSTICE, et al., 8 ORDER DENYING PLAINTIFFS’ Plaintiffs, MOTION FOR SUMMARY 9 JUDGMENT AND GRANTING v. DEFENDANT’S MOTION FOR 10 SUMMARY JUDGMENT ROB BONTA, 11 Re: Dkt. Nos. 43, 45 Defendant. [12] 13 Pending before the Court are the parties’ cross-motions for summary judgment. The Court 14 held a hearing on the cross-motions. For the reasons detailed below, the Court GRANTS 15 Defendant’s motion and DENIES Plaintiffs’ motion. 16 I. BACKGROUND 17 On May 28, 2021, Plaintiffs Progressive Democrats for Social Justice (“PDSJ”), Krista 18 Henneman, and Carlie Ware filed an ex parte application for a temporary restraining order 19 (“TRO”) forbidding Defendant Rob Bonta, in his official capacity as Attorney General of the State 20 of California, from enforcing California Government Code § 3205 against Plaintiffs, and directing 21 Defendant to forbid the Santa Clara County District Attorney from enforcing § 3205 against them 22 as well. Dkt. No. 14. The Court denied this application on July 16, 2021. See Dkt. No. 26. 23 The parties are familiar with the facts of this case, and they have agreed on a joint 24 statement of undisputed facts for purposes of their cross-motions for summary judgment. See Dkt. 25 No. 43-2 (“Joint Statement”). 26 PDSJ is a Democratic club chartered by the Democratic Party of Santa Clara County. See 27 id. at ¶ 2. Its stated purposes are to (1) inspire grassroots participation in the political process; 1 candidates for elective office; (4) research selected ballot initiatives and proposed legislation and 2 strive to inform voters regarding such issues; (5) further progressive reform within the Democratic 3 Party; and (6) collaborate with non-partisan organizations that support the progressive movement. 4 See id. at ¶ 8. Approximately half of PDSJ is composed of Santa Clara County employees, 5 including Plaintiffs Henneman and Ware, who are deputy public defenders with the Santa Clara 6 County Public Defenders’ Office.1 See id. at ¶¶ 1, 3, 5–6. 7 On July 11, 2021, Sajid Khan, a Santa Clara County public defender, announced his 8 candidacy for the office of the Santa Clara District Attorney. See id. at ¶ 9. Mr. Khan is running 9 against the incumbent, Santa Clara District Attorney Jeff Rosen. See Dkt. No. 25. During the 10 hearing on the ex parte application for a temporary restraining order, the parties confirmed that the 11 primary election will take place in June 2022 and the general election will take place in November 12 2022. Dkt. No. 27 at 45:16–18. 13 Plaintiffs want to solicit campaign donations for Mr. Khan from other county employees, 14 including other Santa Clara public defenders. See Joint Statement at ¶ 10. They believe that this 15 will be more effective than general solicitations. See Dkt. No. 43-3 (“Henneman Decl.”) at ¶ 8; 16 Dkt. No. 43-4 (“Ware Decl.”) at ¶ 11. However, Plaintiffs state that they cannot solicit 17 contributions from county employees without violating California Government Code § 3205. See 18 Henneman Decl. at ¶ 11; Ware Decl. at ¶ 14. 19 Section 3205(a) provides that: [20] An officer or employee of a local agency shall not, directly or 21 indirectly, solicit a political contribution from an officer or employee of that agency . . . with knowledge that the person from whom the 22 contribution is solicited is an officer or employee of that agency. [23] 24 See Cal. Gov’t Code § 3205(a). A “local agency” is defined as “a county, city, city and county, 25 political subdivision, district other than a school district, or municipal corporation.” Cal. Gov’t 26 Code § 3202(a). A violation of § 3205 “is punishable as a misdemeanor,” and “[t]he district [27] 1 attorney shall have all authority to prosecute under this section.” Id. § 3205(d). However, the 2 statute does not prohibit a “solicitation made to a significant segment of the public which may 3 include officers or employees of that local agency.” Id. § 3205(c). In short, § 3205 prevents local 4 employees from specifically targeting their colleagues for campaign contributions. 5 The parties agree that as Santa Clara public defenders, Plaintiffs Henneman and Ware are 6 employees of a local agency within the meaning of the statute. Plaintiffs state that all Santa Clara 7 County employees were cautioned against soliciting campaign contributions from their fellow 8 County employees in a memorandum from Santa Clara County counsel circulated in August 2020. 9 See Henneman Decl. at ¶¶ 14–15; Ware Decl. at ¶¶ 17–18. Plaintiffs contend that they do not 10 have supervisory authority over any other Santa Clara County employees, and would not solicit 11 campaign contributions at work, or use any county resources. See Henneman Decl. at ¶¶ 12–13; 12 Ware Decl. at ¶¶ 15–16. 13 Plaintiffs argue that § 3205 is unconstitutional under the First Amendment and the Equal 14 Protection Clause as applied to Plaintiffs because it treats local employees differently than state 15 employees, and is therefore not narrowly tailored. See generally Dkt. No. 43-1. They seek “an 16 appropriate injunction prohibiting criminal enforcement” of § 3205 so they may solicit campaign 17 contributions for the upcoming campaign without fear of prosecution. See id. at 21. Unlike at the 18 TRO stage, Plaintiffs note that their requested injunction would prohibit the enforcement of 19 § 3205 against any local employees, and not just Plaintiffs. See Dkt. No. 43-1 at 8. The parties 20 agree that this matter may be resolved on their cross-motions for summary judgment. See Dkt. 21 Nos. 43-1, 45, 22 II. LEGAL STANDARD 23 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 24 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 25 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson 26 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is evidence in the 27 record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. The 1 favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 2 574, 587–88 (1986), and “may not weigh the evidence or make credibility determinations,” 3 Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled on other grounds by Shakur v. 4 Schriro, 514 F.3d 878 , 884–85 (9th Cir. 2008). 5 The moving party bears both the ultimate burden of persuasion and the initial burden of 6 producing those portions of the pleadings, discovery, and affidavits that show the absence of a 7 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the 8 moving party will not bear the burden of proof on an issue at trial, it “must either produce 9 evidence negating an essential element of the nonmoving party's claim or defense or show that the 10 nonmoving party does not have enough evidence of an essential element to carry its ultimate 11 burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 , 1102 12 (9th Cir. 2000). Where the moving party will bear the burden of proof on an issue at trial, it must 13 also show that no reasonable trier of fact could not find in its favor. Celotex Corp., 477 U.S. at 14 325. In either case, the movant “may not require the nonmoving party to produce evidence 15 supporting its claim or defense simply by saying that the nonmoving party has no such evidence.” 16 Nissan Fire & Marine Ins. Co., 210 F.3d at 1105. “If a moving party fails to carry its initial 17 burden of production, the nonmoving party has no obligation to produce anything, even if the 18 nonmoving party would have the ultimate burden of persuasion at trial.” Id. at 1102–03. 19 “If, however, a moving party carries its burden of production, the nonmoving party must 20 produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party 21 “must do more than simply show that there is some metaphysical doubt as to the material facts.” 22 Matsushita Elec. Indus. Co., 475 U.S. at 586. A nonmoving party must also “identify with 23 reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 24 F.3d 1275, 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its 25 claim or defense, courts enter summary judgment in favor of the movant. Celotex Corp., 477 U.S. 26 at 323. 27 III. DISCUSSION 1 § 3205 provides more severe restrictions on political solicitations from local employees than the 2 statutes, laws, and regulations that govern the political activities of state employees. See Dkt. No. 3 43-1 at 1; see also Joint Statement at ¶¶ 27–33. Defendant affirmed it “is not aware of a 4 California statute, rule, or regulation that prohibits all forms of political solicitations from one 5 state employee to another state employee” as § 3205 does.2 See Joint Statement at ¶ 31. Plaintiffs 6 assert that this admission is dispositive because “State employees may do what Plaintiff county 7 employees may not.” See Dkt. No. 43-1 at 1. Plaintiffs argue that this distinction is irrational, and 8 not narrowly tailored to a legitimate government interest, and therefore violates both the First 9 Amendment and the Equal Protection Clause. See id. at 2. 10 A. First Amendment 11 i. Level of Scrutiny 12 As before, the parties disagree about what level of scrutiny applies to both the First 13 Amendment and Equal Protection Clause claims.3 Compare Dkt. No. 43-1 at 9–14, with Dkt. No. 14 45 at 7–8, 13–18. For clarity, the Court addresses the level of scrutiny separately for each cause of 15 action. 16 Turning to the First Amendment claim, Plaintiffs again argue that because § 3205 burdens 17 political speech, the Court should apply some form of “close scrutiny,” in which the restrictions on 18 speech “must be ‘closely drawn to avoid unnecessary abridgment of associational freedoms.’” See 19 Dkt. No. 43-1 at 9, 11 (quoting McCutcheon v. FEC, 572 U.S. 185, 191 (2014) (plurality 20 opinion)). Defendant argues that the Court should continue to apply the balancing test from 21 Pickering v. Board of Education, 391 U.S. 563, 568 (1968), as it did in the TRO order. See Dkt. 22 No. 45 at 7–8, 13–18. 23 In the TRO order, the Court explained that because § 3205 only applies to public [24] 2 The parties acknowledge that California Government Code § 19990 applies to state employees. [25] See Dkt. No. 26 at 14; see also Joint Statement at ¶¶ 27–28. However, § 19990 is not coextensive with § 3205, and does not impose criminal sanctions for violating its provisions. The application [26] of § 19990 to state employees, therefore, does not resolve the issue before the Court: whether the disparate treatment of state versus local employees under § 3205 is unconstitutional. [27] 3 The parties suggest in passing that the level of scrutiny may not be dispositive. See Dkt. No. 431 employees, the Pickering balancing test should apply: [2] The Supreme Court has explained that the government “has interests 3 as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of 4 the speech of the citizenry in general.” Pickering v. Board of Education, 391 U.S. 563, 568 (1968). Thus, “[w]hen a citizen enters 5 government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410 , 6 418 (2006). The resulting challenge “is to arrive at a balance between the interests of the [employee], as a citizen in commenting upon 7 matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through 8 its employees.” Pickering, 391 U.S. at 568 . 9 . . . 10 Under the Pickering balancing test, a court must first determine whether the speech at issue was that of the employee as a citizen on a 11 matter of public concern. See id. at 418. “If the answer is no, the employee has no First Amendment cause of action based on his or her 12 employer’s reaction to the speech.” Id. But if the speech was made as a citizen on a matter of public concern, then a court must balance 13 the First Amendment claims of an employee versus the justification the government has for treating the employee differently from any 14 member of the public. Id. [15] 16 See Dkt. No. 26 at 9–13. The Court continues to believe that Pickering should apply to Plaintiffs’ 17 First Amendment claim, and adopts its prior analysis in its entirety. See id.; see also Lane v. 18 Franks, 573 U.S. 228 , 236 (2014) (“Pickering provides the framework for analyzing whether the 19 employee’s interest or the government’s interest should prevail in cases where the government 20 seeks to curtail the speech of its employees.”). 4 To the extent that Plaintiffs still disagree, Dkt. 21 No. 43-1 at 11–14, their arguments are preserved for appeal. 22 Plaintiffs also contend, in the alternative, that even if Pickering applies, some heightened 23 version of its balancing test is warranted. See Dkt. No. 43-1 at 10–11. Plaintiffs argue that 24 because § 3205 is an ex ante restriction on local employees’ speech, the government’s burden to [25] 4 The Court recognizes that the California Legislature—which enacted § 3205—is not the direct [26] employer of either the state or local employees in this case. The Supreme Court has not, however, found this distinction dispositive in determining whether the government is acting as an employer [27] for purposes of Pickering. See, e.g., NTEU, 513 U.S. at 457–71 (applying Pickering where 1 justify the restriction must be greater. See id. at 10 (citing United States v. National Treasury 2 Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”)). But at least one Justice of the Supreme 3 Court has cautioned against too heavy a reliance on the distinction between ex ante rules and ex 4 post punishments for employee speech. See, e.g., NTEU, 513 U.S. at 481 (O’Connor, J., 5 concurring) (“To draw the line based on a distinction between ex ante rules and ex post 6 punishments, in my view, overgeneralizes and threatens undue interference with the government’s 7 mission as employer . . . .”). Rather, the Supreme Court has focused on the scope of laws which 8 regulate employee speech, noting that “[a] speech-restrictive law with ‘widespread 9 impact . . . gives rise to far more serious concerns than could any single supervisory decision.’” 10 See Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2472 (2018) 11 (quoting NTEU, 513 U.S. at 468 ). 12 In any event, the Court does not believe that Plaintiffs’ interpretation of NTEU is in 13 conflict with this Court’s prior application of the Pickering balancing test. See generally Dkt. No. 14 26. In NTEU, the Supreme Court considered a law which prohibited federal employees from 15 “accepting any compensation for making speeches or writing articles,” even when the topic was 16 not related to the employee’s job duties. See NTEU, 513 at 457–59. The Supreme Court 17 emphasized that this ban “chill[ed]” a “broad category of expression by a massive number of 18 potential speakers.” Id. at 467 . The Court further explained that the ban burdened both the 19 speakers and members of the public who stood to benefit from hearing or reading the employees’ 20 speech. See id. at 468–70. The Supreme Court concluded that “[t]he Government must show that 21 the interests of both potential audiences and a vast group of present and future employees in a 22 broad range of present and future expression are outweighed by that expression’s ‘necessary 23 impact on the actual operation’ of the Government.” Id. at 468 (quoting Pickering, 391 U.S. at 24 571). 25 The Supreme Court in NTEU thus clarified that courts must consider the interest of all 26 employees whose speech is restricted—not just any named plaintiffs—as well as the interest of 27 any members of the public who have an interest in hearing this speech. Id. The Court agrees with 1 placed on the two individual Plaintiffs and PDSJ. But because § 3205 only restricts local 2 employees’ ability to solicit campaign contributions from other local employees, the general 3 public’s interest in such speech is not directly implicated. Nothing in § 3205 prohibits local 4 employees from soliciting campaign contributions from members of the public at large. Section 5 3205 explicitly permits “solicitation made to a significant segment of the public which may 6 include officers or employees of that local agency.” Cal. Gov’t Code § 3205(c). Accordingly, as 7 the Court found before, it must balance the First Amendment interests of present and future 8 employees with the interests of the government in restricting this speech. See Dkt. No. 26 at 12. 9 Plaintiffs correctly point out that under NTEU, the government must also “demonstrate that 10 the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these 11 harms in a direct and material way.” See NTEU, 513 U.S. at 475 (quotation omitted); see also 12 Dkt. No. 43-1 at 14–15. In short, the Supreme Court has stated that the government’s stated 13 justification for the regulation of speech must be more than merely speculative. Id. Again, the 14 Court agrees that mere speculation will not suffice to support the constitutionality of § 3205. At 15 bottom, however, the Court must still weigh the interests of local employees against the interest of 16 the government in restricting their ability to solicit campaign contributions from other local 17 employees. 18 ii. Analysis 19 Because the parties agree that the speech at issue here concerns employees speaking out as 20 citizens on a matter of public concern—an upcoming election—the Court continues to the second 21 step of the Pickering analysis: balancing local employees’ First Amendment rights against the 22 government’s justification for treating them differently from members of the public. See Garcetti, 23 547 U.S. at 418–20. In doing so, the Court does not minimize the importance of the First 24 Amendment rights at issue in this case. As the Supreme Court explained, “[t]here is no right more 25 basic in our democracy than the right to participate in electing our political leaders.” McCutcheon, [26] 572 U.S. at 191 . The ability to speak freely on matters of public concern also plays a pivotal role 27 in preserving this right: “[I]t is the essence of self-government.” See Connick v. Myers, 461 U.S. 1 reaffirmed that speech on public issues occupies the highest rung of the h[ie]rarchy of First 2 Amendment values, and is entitled to special protection.” Id. (quotations omitted). 3 In addition to the general importance of free speech and political discourse in our 4 democracy, Plaintiffs highlight the “real-world impacts” of § 3205 on their rights: [5] Plaintiffs and hundreds of thousands of county and local employees 6 may not solicit donations from many of their friends who also work for the same agency, even outside of work and without using any of 7 the trappings of their positions. [8] 9 Dkt. No. 43-1 at 9. Plaintiffs also explain how § 3205 is affecting them specifically. They state 10 that the Khan campaign has compiled a list of people to contact directly to ask for campaign 11 contributions, and Plaintiffs would like to specifically ask other Santa Clara public defenders on 12 the list to contribute to the campaign See, e.g., Henneman Decl. at ¶¶ 7, 10. Plaintiffs believe that 13 directly soliciting these colleagues for campaign contributions will be more effective than general 14 solicitations to the public. Id. at ¶ 8. They thus contend that § 3205 is limiting their ability to 15 campaign effectively. 16 Neither Defendant nor this Court questions the sincerity of Plaintiffs’ contentions. But 17 government employees’ political speech rights are not absolute. For over a century, the Supreme 18 Court has repeatedly upheld restrictions on government employees’ rights to engage in partisan 19 political activity. The fact that § 3205 prevents local employees from soliciting campaign 20 contributions from their colleagues is therefore neither unusual nor dispositive. 21 A brief overview of the Supreme Court’s jurisprudence in this area is instructive in 22 evaluating whether the California Legislature has struck an appropriate balance between the 23 political speech rights of local employees’ and the government’s interests in restricting inter24 agency solicitations. [25] 26 • In Ex parte Curtis, 106 U.S. 371 (1882), the Supreme Court upheld the 27 constitutionality of an 1876 act prohibiting federal officials from requesting or 1 § 3205, the act at issue in Curtis made such conduct punishable as a misdemeanor. See 2 id. at 382. In upholding the act, the Court reasoned that if such solicitations were 3 permitted, employees’ political rights could be unduly influenced by their superiors: 4 “[I]t is easy to see that what begins as a request may end as a demand,” and 5 “[c]ontributions secured under such circumstances will quite as likely be made to avoid 6 the consequences of the personal displeasure of a superior.” Id. at 373. The Supreme 7 Court therefore recognized the federal government’s power to impose reasonable 8 regulations on the political activities of its employees. Id. at 373–75. [9] 10 • In United Public Workers v. Mitchell, 330 U.S. 75 (1947), the Supreme Court upheld 11 the Hatch Act of 1939, 5 U.S.C. §§ 7321 et seq., a federal statute which forbade federal 12 employees from engaging in certain political activities, including taking “any active 13 part in political management or in political campaigns.” Id. at 78 (quotations omitted). 14 In doing so, the Court explained that “[t]he conviction that an actively partisan 15 governmental personnel threatens good administration has [only] deepened since Ex 16 parte Curtis.” Id. at 98–99. The Court further concluded that “[t]he determination of 17 the extent to which political activities of governmental employees shall be regulated 18 lies primarily with Congress.” Id. at 102. [19] 20 • The Supreme Court reaffirmed the constitutionality of the Hatch Act in U. S. Civil 21 Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 22 548, 554 (1973) (“Letter Carriers”). The Supreme Court identified several 23 government interests weighing in favor of laws like the Hatch Act that restrict 24 government employee’s political rights. First, the Court emphasized the importance of 25 impartiality in the administration of laws. See id. at 564–65 (“[E]mployees should 26 administer the law in accordance with the will of Congress, rather than in accordance 27 with their own or the will of a political party.”). Second, and relatedly, the Court 1 members of the public, to promote public confidence in the system. Id. Third, the 2 Court explained that government employees “should not be employed to build a 3 powerful, invincible, and perhaps corrupt political machine.” Id. Lastly, the Court 4 reiterated that such laws also protect government employees’ own rights to be free 5 “from express or tacit invitation to vote in a certain way or perform political chores in 6 order to curry favor with their superiors rather than to act out their own beliefs.” Id. at 7 566–67. [8] 9 • In Broadrick v. Oklahoma, 413 U.S. 601, 602 (1973), which was published the same 10 day as Letter Carriers, the Supreme Court upheld Oklahoma’s state-law version of the 11 Hatch Act. The statute included similar language to § 3205, prohibiting the solicitation 12 of political contributions from colleagues. See id. at 603–06, 610–11. The plaintiffs 13 and the Supreme Court noted that states have similar interests to those of the federal 14 government in preventing corruption and “political extortion” among employees. Id. at 15 606–07. The Court further noted that the Oklahoma statute sought “to regulate 16 political activity in an even-handed and neutral manner.” Id. at 616. The plaintiffs in 17 Broadrick argued that the Oklahoma statute was nevertheless unconstitutionally vague 18 and overbroad, but the Supreme Court rejected this challenge. See id. at 606–18. [19] 20 • Ten years later, in Connick v. Myers, the Supreme Court again recognized that 21 government employers have legitimate “interest[s] in the effective and efficient 22 fulfillment of [their] responsibilities to the public,” including “promot[ing] efficiency 23 and integrity in the discharge of official duties, and [] maintain[ing] proper discipline 24 in public service.” See 461 U.S. at 150–151 (quotation omitted). The Supreme Court 25 also reiterated that “official pressure upon employees to work for political candidates 26 not of the worker’s own choice constitutes a coercion of belief in violation of 27 fundamental constitutional rights.” Id. at 149. 1 As these cases illustrate, the Supreme Court has repeatedly acknowledged the importance 2 of the government’s interests in placing reasonable restrictions on public employees’ political 3 speech. The Court has recognized that as employers, both federal and state governments have a 4 strong interest in regulating public employees qua employees to “promot[e] the efficiency of the 5 public services [they] perform[] through [their] employees.” Pickering, 391 U.S. 568 . 6 Governments may therefore regulate employees to “maintain[] . . . discipline by immediate 7 superiors or harmony among coworkers.” Id. at 570. But critically, public employees are also in 8 positions of public trust. Concerns about corruption and coercion in the workplace are thus 9 heightened. See, e.g., Letter Carriers, 413 U.S. at 565 (noting that government employees “are 10 expected to enforce the law and execute the programs of the Government without bias or 11 favoritism for or against any political party or group or the members thereof”). The government 12 has unique interests in maintaining public confidence in the government and in public employees. 13 See id. (finding that restrictions on government employees’ speech are necessary “if confidence in 14 the system of representative Government is not to be eroded to a disastrous extent”). 15 Additionally, the Supreme Court has recognized that federal and state governments have 16 an important interest in protecting the First Amendment rights of public employees. Plaintiffs in 17 this case have emphasized their individual desire to solicit campaign contributions from their 18 colleagues. See, e.g., Joint Statement at ¶ 10. But Plaintiffs appear to disregard whether their 19 colleagues would feel uncomfortable with or pressured by such solicitations. Government 20 employees should “be free from pressure and from express or tacit invitation to vote in a certain 21 way or perform political chores in order to curry favor with their superiors rather than to act out 22 their own beliefs.” Letter Carriers, 413 U.S. at 566–67. Plaintiffs’ First Amendment rights are 23 therefore not the only First Amendment rights at issue in this case. “When an employee speaks as 24 a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing 25 of the competing interests surrounding the speech and its consequences.” Garcetti, 547 U.S. at 26 423. Here, the government has a strong interest in protecting other public employees from 27 political pressure, and that interest must be considered as well. 1 its approval of similar restrictions on employees’ speech, strongly supports Defendant’s argument 2 that § 3205 is not unconstitutional. 3 Against the weight of these interests, the Court finds it significant that § 3205 does not 4 prohibit all political participation. Section 3205 includes an exception that allows county, city and 5 local agency employees to solicit political donations from their colleagues “if the solicitation is 6 part of a solicitation made to a significant segment of the public which may include officers or 7 employees of that local agency.” Cal. Govt. Code § 3205 (c). Even if Plaintiffs believe Santa 8 Clara County employees would be particularly interested in the campaigns for Santa Clara County 9 District Attorney, they may circulate solicitations that encompass County employees. 10 Plaintiffs attempt to minimize the importance of Defendant’s interests in this case by 11 pointing to § 3205’s limited legislative history. See Dkt. No. 47 at 2–5. But California has 12 recognized—and sought to prevent—the existence and appearance of corruption and coercion 13 among public employees for over a century. The parties appear to agree that § 3205 was first 14 enacted in some form as early as 1913. Compare Dkt. No. 45 at 2, with Dkt. No. 47 at 2, & n.2. 15 Early on, these restrictions applied to state employees, and prevented, among other things, 16 solicitations of state employees by their colleagues. See Dkt. No. Dkt. No. 45-1 (“Dalju Decl.”), 17 Ex. 4 at 91–92.5 In 1963, the California Legislature amended the statute to address concerns that 18 “[l]imits on political activity by employees of local governmental units vary widely from county 19 to county and from city to city throughout California.” See id. at 97 (emphasis added); see also 20 id., Ex. 3 at 83–85. For example, under the Los Angeles County charter, county employees had 21 “almost no political freedom” and voters defeated an attempt to amend the charter to address this 22 issue directly. See id., Ex. 4 at 97. The City of Los Angeles, by contrast, had “no limit on 23 employee political freedom in its charter.” See id. 24 According to the legislative history, amendments were proposed in 1976 to repeal the 25 solicitation restrictions on both state and local employees. See id., Ex. 1 at 14–17. Under the 26 initial amendment, local agencies would adopt their own rules and regulations in city and county [27] 1 charters to govern the political activities of their employees during working hours or on work 2 premises. See, e.g., id. at 65. The legislative history does not explain what prompted this 3 proposal. Regardless of the impetus for this change, the Legislature received some opposition to 4 the proposed repeal as to local employees from local governments, including the Cities of 5 Sacramento and Los Angeles. See id. at 31–35, 51–54, 60–65, 71. In contrast, in the end the State 6 Personnel Board did not oppose repealing the solicitation restrictions on state employees. See id. 7 at 56, 70–71, 77. The Board recognized the need to “maintain a State work force free from 8 political influence and patronage.” See id. at 70. However, it noted that regardless of California’s 9 solicitation restrictions, state employees in federally funded positions would still be subject to the 10 Federal Hatch Act, which prohibits encouraging another employee to make a political 11 contribution.” See id. The bill was ultimately amended to repeal the solicitation restrictions only 12 as to state employees, leaving the restrictions in place as to local employees. Id. 13 As Plaintiffs point out, the Governor’s Director of Employee Relations, Marty 14 Morgenstern, recommended that the Governor veto this version of the bill. See id. at 72. Mr. 15 Morgenstern cited the disparate treatment of state and local employees. See id. Far from thinking 16 that corruption and coercion were no longer problems in California, he appeared to believe that the 17 solicitation ban should continue as to state employees as well. See id. He explained that “it’s 18 probably bad business to allow one State employee to solicit from another on the job,” and “it 19 might well be that State employees would resent such activities.” See id. However, the Governor 20 nevertheless signed the bill into law. See 1976 Cal. Session Laws Ch. 1422. The statute was last 21 amended in 1995, at which point the Legislature continued to explain that “neither [government] 22 employees nor officers should be coerced into contributions for fear that their employment may be 23 in jeopardy if they do not contribute.” Cal. Bill Analysis, S.B. 1308, 1995–1996 Session (July 12, 24 1995). 25 Plaintiffs attempt to dismiss this legislative history by suggesting that “interest groups 26 weighed in” to create an anomalous distinction in the law between state and local employees. See 27 Dkt. No. 47 at 3–4. But the legislative history, when read in its entirety, indicates that a lack of 1 local employees’ ability to engage in political activity differed widely across the state depending 2 on which agency they worked for. Additionally, there was evidence that in the past, these local 3 agencies had difficulty addressing these disparities on their own. Los Angeles County’s efforts to 4 amend its charter, for example, failed. The initial 1976 amendment, which proposed eliminating 5 § 3205 as to both state and local employees, would have resulted in a return to this ad hoc system 6 in which local agencies could decide individually how (or even whether) to limit their employees’ 7 political activity at work. There is no evidence in the record that the local agencies would have 8 been better able to pass uniform and sufficiently protective rules and regulations in 1976 than they 9 were in 1963. It is therefore not surprising that some local agencies opposed this change, and 10 § 3205 ultimately remained in place as to local employees. 11 The legislative history also suggests that the Legislature considered the applicability of 12 § 3205 to state employees too. As noted above, the State Personnel Board concluded that some 13 state employees who were in federally funded positions would still be subject to restrictions under 14 the federal Hatch Act. A letter from Assemblyman John Vasconcellos noted that at least he 15 believed there were still sufficient “precautions and protections” to prevent retaliation and the 16 politicization of the state civil service. See Dalju Decl., Ex. 1 at 77. While Plaintiffs contend that 17 “political favoritism” was at play, see Dkt. No. 47 at 3, this history can be equally read to suggest 18 that the Legislature was responding to the evidence before it. 19 Plaintiffs rely heavily on the fact that in 1976, Mr. Morgenstern stated that he could not see 20 a reason in the record to distinguish between state and local employees. See, e.g., id. at 4–5. But 21 Plaintiffs offer no reason to credit this single, unelected advisor’s opinion over the official 22 decision-making of the California Legislature and the Governor himself. Even if some weight 23 could be given to his opinion, as noted above, Mr. Morgenstern explained that California had good 24 reason to limit the political activities of all state and local employees. Moreover, the Supreme 25 Court has recognized that courts have at least some “obligation to defer to considered 26 congressional judgments about matters such as appearances of impropriety . . . .” NTEU, 513 U.S. 27 at 476 . The Court therefore must give some deference to the reasoned decision-making of the 1 Despite this history, Plaintiffs suggest that the Defendant offers only speculation that local 2 employees’ solicitations would threaten the government’s interests. Plaintiffs seem to suggest that 3 under NTEU, the government must put forward some kind of data illustrating the benefits that 4 § 3205 has had on local government over the years. See Dkt. No. 43-1 at 14–15. But of course, if 5 § 3205 were successful, there would be few if any instances of employees coercing their 6 coworkers—explicitly or obliquely—to contribute to the campaigns of the solicitor’s choosing. 7 Coercion, by its nature, is also insidious. There will not always be a “smoking gun” that would 8 make it obvious to a third party that such coercion took place in the workplace. Cf. Williams9 Yulee v. Fla. Bar, 575 U.S. 433, 447 (2015) (noting that “the concept of public trust” in the 10 integrity of public employees “does not easily reduce to precise definition, nor does it lend itself 11 to proof by documentary record”). The Supreme Court in NTEU did not demand that the 12 government provide such evidence. Instead, in determining whether the benefits from a statute 13 were purely speculative, the Supreme Court considered the nexus between the law and the 14 government employment. See NTEU, 513 U.S. at 468–74. 15 In NTEU, the Court reasoned that the honorarium ban did not have a sufficient nexus to the 16 affected employees’ work for the government, because the ban applied regardless of whether the 17 speech had anything to do with their job, and applied to speech outside the workplace. Id. The 18 Court seemed skeptical that there was a risk that low-level employees who lacked policymaking 19 authority could be swayed by the payment of honoraria in a way that would affect the integrity or 20 propriety of the government. Id. at 469–70. “Absent such a nexus,” the Court reasoned, “no 21 corrupt bargain or even appearance of impropriety appears likely.” Id. at 474 . But the Court 22 explained that the consequences to these low-level public servants—and the public generally— 23 from the ban was significant. Id. 24 In NTEU, the Supreme Court also contrasted the honorarium ban with the Hatch Act, 25 which was “aimed to protect employees’ rights, notably their right to free expression, rather than 26 to restrict those rights.” Id. at 471 (emphasis in original). The Court recognized that even a 27 lower-level employee “might impair efficiency and morale by using political criteria to judge the 1 protective rationale” provided by the Hatch Act is a “much stronger justification for a proscriptive 2 rule than [is] the Government’s interest in workplace efficiency.” Id. at 475 , n.21 (citing Mitchell, 3 330 U.S. 100–101). 4 So too here. Prohibiting local employees from soliciting campaign contributions from 5 their fellow employees protects everyone’s right to make political decisions based on their own 6 beliefs rather than the perceived expediency of currying favor, or out of a fear of repercussions. 7 Given this backdrop, the government’s concern about coercion and corruption among local 8 employees is neither speculative nor unreasonable. Considering the legislative history of § 3205 9 and the Supreme Court’s jurisprudence, the Court finds that the California Legislature has 10 reasonably weighed the interests of local employees like Plaintiffs against the government’s 11 interest in preventing both the proliferation and appearance of corruption and coercion in the 12 workforce. 13 At bottom, Plaintiffs appear to suggest that California cannot have a legitimate interest in 14 preventing coercion or corruption among any public employees because state employees are no 15 longer subject to § 3205. But Plaintiffs’ concern that state and local employees are now treated 16 differently under § 3205 is simply not enough on its own to undermine the constitutionality of the 17 statute under the First Amendment. The Supreme Court has made clear that “[a]lthough a law’s 18 underinclusivity raises a red flag, the First Amendment imposes no freestanding 19 ‘underinclusiveness limitation.’” Williams-Yulee, 575 U.S. at 448–49. As already discussed at 20 length, the government’s interests in preventing coercion and corruption are substantial. Indeed, 21 in its briefing on the TRO, Plaintiffs seemed to acknowledge this implicitly, suggesting that it 22 would likely be constitutional for the California Legislature to prohibit all state and local 23 employees from soliciting campaign contributions. See Dkt. No. 14 at 7 (“[T]he state likely could 24 ban political solicitation by all employees to promote its interests in avoiding corruption, coercion, 25 and the appearance of corruption and coercion.”). But “[a] State need not address all aspects of a 26 problem in one fell swoop; policymakers may focus on their most pressing concerns.” Id. at 449. 27 The legislative history for § 3205 indicates that there was a specific concern about the uniformity 1 by the relative size of this workforce—over one million employees of counties, cities, and special 2 districts in California. See Joint Statement at ¶ 18. The Court thus cannot conclude that it was 3 unreasonable or unlawful for § 3205 to focus on local employees. 4 The Court is not tasked with determining whether the California Legislature could have 5 devised a different or better system to eradicate political corruption and coercion among public 6 employees. But in evaluating the balance the Legislature struck between these interests and the 7 political speech rights of public employees, the Court finds it significant that the Legislature 8 identified possible distinctions between state and local employees. Defendant has accordingly 9 provided adequate justification for burdening the political solicitation rights of local employees to 10 protect employees and the public from coercion and corruption. The Court finds that § 3205 does 11 not violate the First Amendment. 12 B. Equal Protection 13 i. Level of Scrutiny 14 Defendant explains at the outset that the fact that state and local employees are treated 15 differently under § 3205 is not inherently problematic. “[T]he Equal Protection Clause does not 16 forbid classifications” because “[o]f course, most laws differentiate in some fashion between 17 classes of persons.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). “Legislatures are presumed to 18 have acted within their constitutional power despite the fact that, in practice, their laws result in 19 some inequality.” Id. The Equal Protection Clause “simply keeps governmental decisionmakers 20 from treating differently persons who are in all relevant respects alike.” Id. (emphasis added). 21 In determining whether § 3205 treats similarly situated employees the same, Defendant 22 contends that some form of rational basis review should apply. See Dkt. No. 45 at 18–19. The 23 Supreme Court has explained in the context of the Equal Protection Clause: [24] Although no precise formula has been developed, the Court has held 25 that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens 26 differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the 27 achievement of the State’s objective. State legislatures are presumed discrimination will not be set aside if any state of facts reasonably 1 may be conceived to justify it. [2] 3 McGowan v. Maryland, 366 U.S. 420 , 425–26 (1961). Therefore, in general “the Equal Protection 4 Clause requires only that the classification rationally further a legitimate state interest.” 5 Nordlinger, 505 U.S. at 10 . 6 Plaintiffs suggest that some level of heightened review is appropriate, however, because 7 § 3205 “jeopardizes [the] exercise of a fundamental right.” See id.; see Dkt. No. 43-1 at 11, 13– 8 14. Plaintiffs first cite the Ninth Circuit’s opinion in Harwin v. Goleta Water District.6 Id. In 9 Harwin, the Ninth Circuit considered the constitutionality of a California water district’s 10 ordinance, which disqualified water board members from reviewing water service applications if 11 they had received a campaign contribution of at least $250 from the specific applicant. See 953 12 F.2d 488 , 489–90 (9th Cir. 1991). The ordinance did not, however, disqualify board members 13 from considering an application if the board member had received a campaign contribution of at 14 least $250 from a person opposing the particular application for water service. See id. 15 Significantly, the Ninth Circuit considered this disqualification provision a campaign contribution 16 limit. See id. at 489, n.1 . 17 In defining the appropriate level of scrutiny, the Harwin court reasoned that 18 “discrimination in the First Amendment context is permissible only when the government can 19 show that the discrimination is itself necessary to serve a substantial governmental interest.” Id. at 20 490. But the court did not explicitly determine the level of scrutiny that is required in the Equal 21 Protection context. Rather, in a footnote, the court stated that “[w]hether analyzed under the First 22 Amendment or under the Equal Protection Clause of the Fourteenth Amendment . . . 23 discriminatory burdens on First Amendment rights have typically been subjected to strict 24 scrutiny.” Id. at 491, n.6 . In the same footnote, the court also recognized that “it is conceivably 25 arguable that a lower level of scrutiny should apply to discriminatory contribution limits because [26] 6 In explaining why Pickering should not apply in the Equal Protection context, Plaintiffs note that [27] workplace policies that discriminate on the basis of race would still require the application of strict 1 contribution limits are subject to a lower level of scrutiny than expenditure limits . . . .” Id. The 2 Ninth Circuit thus recognized that there may be distinctions to be drawn in the level of scrutiny 3 that applies to restrictions on political speech. The case does not clarify what level of scrutiny 4 should apply to restrictions on solicitations for campaign contributions in the Equal Protection 5 Clause context. The parties do not cite—and the Court has not found—a case addressing the level 6 of scrutiny that should apply under the Equal Protection Clause to restrictions on soliciting public 7 agency colleagues for campaign contributions. 8 Importantly, the differences between limitations on campaign contributions and limitations 9 on solicitations for campaign contributions are not merely academic. As with other political 10 speech, the Supreme Court has recognized the importance of campaign contributions as “a general 11 expression of support for the candidate and his views.” See Buckley v. Valeo, 424 U.S. 1 , 21 12 (1976). The Court has further noted the pragmatic reality that in modern elections, “the raising of 13 large sums of money [is] an ever more essential ingredient of an effective candidacy.” Id. at 26 . 14 In analyzing restrictions on contributions, the Court nevertheless has recognized the government’s 15 interests in preventing corruption and the appearance of corruption in politics. See id. at 26–27 16 (“To the extent that large contributions are given to secure a political quid pro quo from current 17 and potential office holders, the integrity of our system of representative democracy is 18 undermined.”). In contribution cases, therefore, courts weigh the individual contributor’s rights 19 almost entirely against more generalized good governance and anti-corruption concerns. 20 Those general concerns, as already discussed, certainly exist in the context of solicitations 21 for campaign contributions. But critically, when evaluating limitations placed on solicitations by 22 public employees for campaign contributions, courts must also consider the interests of the other 23 public employees who would be the targets of political solicitations. Those public employees are 24 entitled to exercise their First Amendment rights free from the undue influence of their coworkers 25 and supervisors. There simply is no analogue in the contribution context for the rights of these 26 potential solicitees: while in contribution cases the would-be recipient of a banned contribution 27 presumably will always have a strong and unambiguous personal interest in receiving more 1 threatened by solicitations from their boss, or from coworkers who could end up being their boss 2 (or their boss’s lieutenant) tomorrow. The Supreme Court has identified this principle as the 3 rationale for “employee-protective” laws like the Hatch Act. See NTEU, 513 U.S. at 475, n.21; 4 Letter Carriers, 413 U.S. at 566–67. So the Court must take this distinction into account in 5 considering whether the standard of review from the contribution line of cases is a good fit for this 6 very different context. 7 Perhaps recognizing the lack of clarity in the law, Plaintiffs suggest instead that more 8 broadly, under any applicable standard, “[t]he law must be closely tailored to a specific 9 government interest.” See Dkt. No. 47 at 9, 14. Plaintiffs rely on the Supreme Court’s opinion in 10 McCutcheon v. Federal Election Committee, which states that restrictions on political speech must 11 be at least “closely drawn to avoid unnecessary abridgement of associational freedoms,” and must 12 address a state interest that is at least “important.” 572 U.S. at 197 . But like Harwin, the Court in 13 McCutcheon addressed campaign contribution limits in the context of the First Amendment and 14 did not address how, if at all, the standard might differ under the Equal Protection Clause. See id. 15 at 191 (“The right to participate in democracy through political contributions is protected by the 16 First Amendment . . . .”). 17 In any event, even applying Plaintiffs’ heightened standard, the Court finds that § 3205 18 addresses an important government interest and is at least “closely drawn to avoid unnecessary 19 abridgement of associational freedoms.” McCutcheon, 572 U.S. at 197 . 20 ii. Analysis 21 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 22 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 23 direction that all persons similarly situated should be treated alike.” Arizona Dream Act Coal. v. 24 Brewer, 757 F.3d 1053, 1063 (9th Cir. 2014) (quoting City of Cleburne v. Cleburne Living Or., [25] 473 U.S. 432, 439 (1985)). Here, it is uncontested that only local employees are subject to § 3205, 26 while state employees are not. See Cal. Gov’t Code § 3205(a); see also Joint Statement at ¶¶ 27– 27 33. 1 similarly situated such that the Equal Protection clause is even implicated. Compare Dkt. No. 47 2 at 11–13, with Dkt. No. 45 at 19–22. The Court finds based on the record before it that state and 3 local employees are not similarly situated. 4 First, the level of oversight for state and local employees is significantly different. Unlike 5 for local agencies, there is a single entity that oversees state employees. The California 6 Department of Human Resources (“CalHR”) is responsible for issues related to state employee 7 salaries and benefits, job classifications, civil rights, training, exams, recruitment and retention.7 8 According to CalHR, “many of these matters are determined through the collective bargaining 9 process managed by CalHR.”8 CalHR also oversees the State Personnel Board functions of 10 reviewing adverse actions taken against state employees and appeals from those actions.9 As part 11 of this process, CalHR also provides guidance for Labor Relations Officers about what activities 12 state employees may engage in.10 In their “Q&A” webpage, CalHR answers questions about what 13 kind of political campaigning and fundraising is allowed in the workplace during work hours.11 14 There is therefore a uniform process for creating, interpreting, and enforcing rules and regulations 15 that apply to state employees. 16 Plaintiffs suggest that the oversight for state employees is actually decentralized because 17 different state agencies may craft their own rules for their own employees. See Dkt. No. 47 at 14– 18 15. Plaintiffs rely on California Government Code § 19990, which states that “[e]ach appointing 19 power shall determine, subject to approval of the department, those activities which, for 20 employees under its jurisdiction, are inconsistent, incompatible or in conflict with their duties as 21 state officers or employees.” Cal. Gov’t Code § 19990. But as this provision makes clear, state 22 agencies must still submit these rules to CalHR for approval. See id. (noting that state agencies’ [24] 7 See Cal. Dep’t Of Hum. Res., About CalHR, https://www.calhr.ca.gov/pages/about-calhr.aspx (last visited Mar. 1, 2022). [25] 8 Id. 9 See Cal. Dep’t Of Hum. Res., Personnel Functions, https://www.calhr.ca.gov/state-hr26 professionals/Pages/personnel-functions.aspx (last visited Mar. 1, 2022). 10 See Cal. Dep’t Of Hum. Res., Political Activities, Sept. 26, 2012, [27] https://www.calhr.ca.gov/state-hr-professionals/Pages/political-activities.aspx (last visited Mar. 1, 1 rules are “subject to approval of the department”). There is, therefore, a single entity that can 2 provide guidance as to what is and is not permissible conduct for state employees, and ensure that 3 those employees may work free of corruption or coercion. 4 In contrast, Plaintiffs do not cite—and the Court is not aware of—any similar oversight 5 across the State’s approximately 3,000 local agencies. See Joint Statement at ¶¶ 15–17. The 6 possible differences across these agencies are not merely hypothetical. As detailed in Section 7 III.A.ii above, the California Legislature recognized that in the past there had been great 8 variability in the kinds of political activity that local employees were allowed to engage in. The 9 lack of uniformity or a centralized decisionmaker could leave doubt about what kind of political 10 activities are permitted by local employees. Moreover, without § 3205, these local agencies would 11 be left to police themselves. This could leave local employees with little recourse if they felt 12 undue pressure or coercion to contribute money to a campaign or political cause, even if it 13 conflicted with their own personal beliefs. 14 Second, the Court finds that the size and nature of the state and local workforces are 15 relevant distinctions. At least as of May 2021, there were only 369,611 state employees in 16 California. See Joint Statement at ¶ 19. CalHR therefore has a sizeable, though apparently 17 manageable, number of employees it helps oversee. However, there are over one million 18 employees of counties, cities, and special districts in California. See id. at ¶ 18. Los Angeles 19 County alone employs approximately 100,000 people. See id. at ¶ 21. And the City of Los 20 Angeles has approximately 50,000 employees. Thus, just the City and County of Los Angeles 21 alone employ approximately 40% of the total number of state employees. 22 Plaintiffs respond that this difference in size is nevertheless irrelevant. Plaintiffs note that 23 there are agencies at the state and local level of differing sizes. See Dkt. No. 47 at 14. Plaintiffs 24 posit the following hypothetical: [25] A law clerk in a state judge’s chambers may solicit political 26 contributions for a judicial candidate from one of her two or three fellow clerks at a Friday happy hour and sit next to the other clerk the 27 following week; meanwhile, a Los Angeles County janitor may not family, even though both are among approximately 100,000 county 1 employees, and even though they may go to work more than 85 miles (and an hours-long drive in LA traffic) from each other. [3] 4 See id. Plaintiffs’ argument, however, misses the point. The state judge and his or her employees 5 have a single entity—CalHR—that is responsible for approving rules governing their employment 6 and providing guidance to the extent there are questions about employees’ rights. The Los 7 Angeles County prosecutor and janitor do not have that resource. On the record before it, 8 therefore, the Court cannot say that state and local employees are similarly situated in all relevant 9 respects. 10 But even if the Court were to analyze § 3205 under the Equal Protection Clause, the Court 11 finds that § 3205 satisfies even heightened scrutiny. There is no question that California’s interest 12 in reducing the existence and appearance of corruption and coercion in the workplace is at least an 13 important one. See Section III.A.ii. And as discussed, the California Legislature had reasonable 14 concerns about protecting local employees in particular, and recognized the need to ensure that 15 they had uniform rules to ensure these interests were served. The limitations imposed by 16 § 3205(a) are also closely drawn to limit only a targeted and discrete aspect of local employees’ 17 speech rights. Section 3205 only prohibits local employees from directly soliciting partisan 18 political contributions from their co-workers. Local employees are still permitted to solicit 19 partisan political donations in broad solicitations. See Cal. Gov. Code § 3205 (c). Section 3205 20 therefore limits its application to the instances of solicitation that are most troublesome: those that 21 could impose coercive pressure on colleagues to contribute to campaigns and causes for reasons 22 other than their own personal political beliefs. The Court finds that even under Plaintiffs’ more 23 exacting standard, therefore, § 3205 does not violate the Equal Protection Clause. 24 // 25 // 26 // 27 // 1 IV. CONCLUSION 2 Accordingly, the Court GRANTS Defendant’s motion for summary judgment and 3 || DENIES Plaintiffs’ motion. The Clerk is directed to enter judgment in favor of Defendant and to 4 || close the case. 5 IT IS SO ORDERED. 6 || Dated: 3/1/2022 HAYWOOD S. GILLIAM, JR. 8 United States District Judge [11] a 12 [16] it 4 18